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Medical Pot Appeals Move Forward
Liz Highleyman | Bay Area Reporter | 12/08/2005

Despite this summer's U.S. Supreme Court ruling that the federal government may continue to prosecute individuals who use medicinal cannabis in states with medical marijuana laws, California patients are not giving up the fight.

On November 23, attorneys for Angel Raich, one of the two plaintiffs in the Supreme Court case, asked the 9th Circuit Court of Appeals to reconsider her lawsuit on different grounds.

"Without cannabis, I would die," said Raich, who suffers from a variety of ailments including an inoperable brain tumor and severe wasting, and is unable to tolerate most pharmaceutical drugs. "I feel very strongly that this case still has merit."

New legal strategy

In a 6-3 split decision in June, the nation's high court overturned a December 2003 9th Circuit ruling in Raich's favor, declaring that the federal government could legitimately regulate cannabis under the interstate commerce clause – even if the pot was provided free and was grown and consumed within a single state.

"The Controlled Substances Act is a valid exercise of federal power," Justice John Paul Stevens wrote for the court's majority, "even as applied to the troubling facts of this case."

Former Chief Justice William Rehnquist, and Justices Clarence Thomas and Sandra Day O'Connor disagreed, arguing in favor of states' rights.

"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," O'Connor wrote.

This time around, rather than focusing on the commerce clause, Raich and her attorneys are basing their arguments on the Fifth, Ninth, and 10th Amendments, claiming that federal drug law deprives her of her rights to life and liberty without due process.

"If I did not have cannabis, I would not be here today," Raich told the Bay Area Reporter. "I don't feel it's fair for this country to say I cannot have this medicine that's saving my life."

The latest appeal will go before the same three-judge panel that previously ruled in Raich's favor; a hearing is scheduled for next spring. Raich said she fully expects the case to make its way back to the U.S. Supreme Court within two years.

"Stay tuned, because this battle is not over," she declared. "I'm going to keep fighting as long as I have breath in my body."

Employee case

In a related case, the California Supreme Court on November 30 agreed to hear the appeal of an employee fired for using medical marijuana outside of work hours.

The plaintiff, Gary Ross, worked as a systems administrator for RagingWire, a Sacramento-based information technology company. He was terminated in 2001 after just one week on the job when a marijuana drug test came back positive.

Ross, who has a doctor's recommendation to use medical cannabis to relieve back pain resulting from an old Air Force injury, said his marijuana use did not negatively affect his job performance. He claims that his firing amounts to discrimination on the basis of a disability, in violation of the Fair Employment and Housing Act.

In September, a three-judge panel from the 3rd District Court of Appeal in Sacramento ruled against Ross, stating that the recent U.S. Supreme Court ruling means federal law supercedes California's Compassionate Use Act (Proposition 215), which was passed by voters in 1996.

"An employer need not accommodate a disability by allowing an employee to use illegal drugs," wrote Justice Arthur Scotland. A state court "has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if it is for medicinal purposes and thus legal under California law."

Medical cannabis advocates, including Oakland-based Americans for Safe Access, which is acting as co-counsel in the case, counter that this summer's U.S. Supreme Court ruling did not invalidate state medical marijuana laws.

"Employers should not have discretion to fire employees based on their patient status," ASA legal director Kris Hermes told the B.A.R . "This is clearly depriving patients of their rights under state law. Medical cannabis patients must have the ability to work and be productive, and deserve the same accommodations as any other worker."

Medical pot forum Friday

Tomorrow (Friday, December 9), the Healthy Choices Program of the Quan Yin Healing Arts Center will host a community forum on medical marijuana, "just in time for the holiday munchies."

The free forum will discuss the latest medical marijuana research and help participants decide whether medical marijuana might be a good option for their health care.

The forum is part of an ongoing series of health education events offered by Quan Yin, a traditional Chinese medicine clinic that provides complementary therapy for people living with HIV/AIDS and hepatitis C.

The forum takes place at 6 p.m. at 455 Valencia Street. For questions or to RSVP, call (415) 861-4964 or send e-mail to hcqyhac@gmail.com.

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